[2022] KEHC 16143 (KLR)

African Evangelistic Enterprise Care African Evangelistic Primary Health Care & another v Nairobi County Government & another (Civil Appeal 474 of 2019) [2022] KEHC 16143 (KLR) (Civ) (9 December 2022) (Judgment)

Neutral citation: [2022] KEHC 16143 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal 474 of 2019

JK Sergon, J

December 9, 2022

Between

African Evangelistic Enterprise Care African Evangelistic Primary Health Care also known as

1st Appellant

African Evangelistic Primary Health Center

2nd Appellant

and

Nairobi County Government

1st Respondent

Prompt Creations Limited

2nd Respondent

(Being an appeal from the Ruling and Order in Nairobi Chief Magistrate Court Civil Case No.8368 of 2018 (Hon D.A Ocharo (Mr.) (PM) delivered on 20th July, 2019)

Judgment

1. At the onset, the appellant herein instituted a suit before the Chief Magistrate's Court by way of the plaint dated 19th September, 2018 and sought for various injunctions arising out of the tort of trespass.The trial magistrate issued orders on 8th October, 2018 to remove any materials deposited in the suit premises and stop trespassing on the suit premises, and that the said orders were extended on various days being 22nd October 2018, 6th November and 3rd December 2018.

2. According to the appellant, the respondents did not comply with the said orders, they therefore brought in an application dated 25th January, 2019 seeking orders that the respondents be found to be in contempt of Court orders, committed to civil jail, that they remove all material deposited in the suit premises and stop trespassing, that they be allowed pull down all construction that has taken place since 3/12/2018 at the cost of the respondents.

3. The respondents opposed the application by grounds of opposition dated 8th April, 2019 and the ruling delivered on 20th July 2019 which was dismissed the application.

4. Being aggrieved by the aforementioned decision, the appellantssought to challenge the same by way of an appeal. Through their memorandum of appeal dated 15th August, 2019 the appellants put in the following grounds:a.That the learned magistrate erred in law and fact in dismissing the appellant’s application when the same should have been granted.b.That the learned magistrate erred in law and fact in dismissing the appellant’s application dated 25/1/2019 with costs for lack of merits without providing any legal reasons and/or grounds for his findings.c.That the learned magistrate erred in law and fact in failing to make any assessment of appellant’s exhibits annexed to the supporting affidavit of the appellant’s application dated 25/1/2019. d.That the learned magistrate erred in law and fact in failing to consider the appellant’s submissions dated 26/3/2019 and filed on 1/4/2019 and authorities.e.That the learned magistrate erred in law and fact in relying on Ground of Opposition dated 8/4/2019 filed without leave of Court and after the appellants had filed their submissions.f.That the learned magistrate erred in law and fact in relying on Grounds of Opposition dated 8/4/2019 which were not and/or never served on the appellants.g.That the learned magistrate erred in law and fact in considering that there was no replying affidavit or defence or any denial by the respondents.h.That the learned magistrate erred in law and fact in failing to find the respondents for contempt of court orders issued on 8/10/2018. i.That the learned magistrate erred in law and fact in failing to appreciate the importance and/or significance of contempt of court proceedings.

5. This court gave directions to the parties to file written submissions on the appeal. The appellant vide his submissions dated 4th March, 2022 gave brief background of the matter and submitted that they had proved that the respondents were represented by the firm of Morara Onsongo & Company Advocates and were present on 3rd December 2018 and 2nd March 2019 when the orders were extended.

6. In regards to the breach of the order, the appellants submitted that it is clear from the evidence adduced by one Benson Omondi in his Supplementary Affidavits sworn on 5th October 2018, 5th November 2018 wherein photos were annexed.

7. The appellant cited Order 21 Rule 4 of the Civil Procedure ruled which depies how a decision of the Court ought to be issued“….. Judgments in defended suits shall contain a concise statement of the case, the points for determination, the decision thereon, and the reasons for such decision.”

8. The appellants relied on the case of Esther Muthoni Munyiri v Amaco Insurance Company Limited reiterated as follows;“The duty to give reasons is a function enshrined under Article 10 of the Constitution on National Values and Principles of Governance. Reasons for Judgments/Rulings both manifest transparency and accountability. The rationale for the duty to give reasons by judges as a custom has been recognised by the courts and that position is well documented in the precedent case of Soulmezes vs Dudley Holdings [1987] 10 NSWLR 247 it was stated:-“The giving of reasons for a judicial decision serves at least three purposes. First, it enables the parties to see the extent to which their arguments have been understood and accepted as well as the basis of the Judge’s decision. As Lord Macmillan has pointed out, the main object of a reasoned judgment “is not only to do but to seem to do justice.”42. In “The Writings of Judgements [1948] 26 Canadian Bar Review at 491” it is stated thus, the articulation of reason provides the foundation for acceptability of the decision by the parties and the public. Secondly, the giving of reasons furthers Judicial accountability. As Professor Shapiro recently stated (In Defence of Judicial Candour [1989] 100 Harvard Law Review 731 at 737 thus:-“…A requirement that judges give reasons or their decision, grounds of the decision that can be debated, attacked and defended serves 9 vital functions in constraining the Judiciary’s exercise of power.”43. The other basis essentials for the duty to give reasons by Judges and Magistrates is to be found in the case of Grollo vs Palmer [1995] 184 CLR 348 while Gummow J said:-“An essential attribute of the judicial power of the Commonwealth is the resolution of such controversies…so as to provide final results which are delivered in public after a public hearing, and where a judge is the tribunal of fact as well as law, are preceded by grounds for decision which are animated by reasoning, an objective of the exercise of the judicial power in each particular case is the satisfaction of the parties to the dispute and the general public that, by these procedures, justice has both been done and seen to be done.”

9. In reply, the respondents gave brief facts of the matter and identified the following issues for determination:a.Whether there was an order to be disobeyedb.Whether there was proper service of the ordersc.Whether the appellants ever identified the contemnorsd.Whether the respondent have been served with notice required under section 30 of the contempt of court acte.The standard of proof.

10. On the first issue, the respondents submitted that in the first instance there was no order to be disobeyed because the order was given on 8th October, 2018 for 14 days only. In accordance with Order 40 rule 4 (2) of the Civil Procedure Rules that provides as follows:(2)An ex parte injunction may be granted only once for not more than fourteen days and shall not be extended thereafter except once by consent of parties or by the order of the court for a period not exceeding fourteen days.

11. The respondents contend that the extension of the interim orders was a nullity as the court did not have jurisdiction to do so and that the discretion of court only applies where there no express provisions.

12. The respondents further contend that in the current scenario, the order for injunction was in force as it lapsed until the time the court heard the application and granted it on interim, and that the 1st respondent had stated that there was no order preventing the 2nd respondent from constructing the said clinic as the clinic is not on the suit property which the appellants want to grab using court orders.

13. The respondents cited section 16 of the Government Proceedings Act under the heading nature of relief provides that:1)In any civil proceedings by or against the Government the court shall, subject to the provisions of this Act, have power to make all such orders as it has power to make in proceedings between subjects, and otherwise give such appropriate relief as the case may require: Provided that— (i) where in any proceedings against the Government any such relief is sought as might in proceedings between subjects be granted by way of injunction or specific performance, the court shall not grant an injunction or make an order for specific performance, but may in lieu thereof make an order declaratory of the rights of the parties; and CAP. 40 [Rev. 2012] Government Proceedings [Issue 1] 12 (ii) in any proceedings against the Government for the recovery of land or other property the court shall not make an order for the recovery of the land or the delivery of the property, but may in lieu thereof make an order declaring that the plaintiff is entitled as against the Government to the land or property, or to the possession thereof. (2) The court shall not in any civil proceedings grant any injunction or make any order against an officer of the Government if the effect of granting the injunction or making the order would be to give any relief against the Government which could not have been obtained in proceedings against the Government.

14. The respondents submitted that the order is self-explanatory as it does not mention anything on construction nor does it mention specific individuals to ensure compliance but agents and that its misguiding and misleading for the appellants to use unambiguous order to claim contempt.

15. On the second issue, the respondents submitted that the appellants failed miserably to disclose whether the said orders were personally served against whomever they intended to cite for contempt and that no affidavit on record, no name of the contemnors since the 1st respondent is the County Government of Nairobi ever present and reachable.

16. The respondent on this argument relied on the case Josephine Mutisya v Lillian Muthama (2014) eKLR where the Court held that the Notice should be served personally and in the case of Direct Assurance Co.Ltd v Jamii Bora (2015) eKLR where the Court held that contempt proceedings are criminal in nature and service ought to be effected personally upon the alleged contemnors to avoid miscarriage of justice.

17. The respondents submitted that the appellants are only telling this court to commit them without informing the court the breach of the orders and whether they were personally served. As it was held in Tetra Radio Limited v Communications Commission of Kenya Civil Application No.121 of 2012 where the Court expressed itself as follows:However, before us is an application, at the heart of which lies a presumption that the respondent has already been adjudged guilty of contempt of court or at the very least, has admitted being in contempt of court. So, we are not being asked to hear and determine whether the respondent is in contempt of court, we are being asked to visit upon it the consequences of contempt of court without any application for such order ever having been made, let alone a court of competent jurisdiction having pronounced it.

18. On the third issue, the respondents submitted that the appellants plead that the County Government of Nairobi be held for contempt without even having to read the orders, to whom the orders were directed to and on the 2nd respondent, the appellants are aware about the contempt of court proceedings against a company as the law is very clear about who should be held for contempt in relation to a limited company.

19. On the fourth issue, the respondents submitted that if indeed the appellants are aware about the existence of the suit then they should either apply for substituted service or at least pinned the orders on the site if at all the suit property is existing and from the court records and evidence provided by the appellants so far it clearly informs the court that the appellants have not bothered to serve the orders and the Notice contemplated under Section 30 of the Contempt of proceedings Act.

20. The respondents relied on the Court of Appeal for Eastern Africa, in Ali Bin Khamis v Salim Bin Khamis Kirobe & Others (1956) 1 EA 195 expressed the view that where an order is made without service upon a person who is affected by it, procedural cockups will not deter the court, ex debitio justitiae ,from setting aside such an order. Briggs, JA with whom Worley P. and Sinclair, VP. Concurred ,stated thus:“On the appeal before us Mr. Khanna relied on Craig v Kanseen [1943] 1 All ER 108 as showing that where an order is improperly made without serving a person known to be affected by it and having a statutory right to be served before its can be made, the order is a nullity in the sense that it must be set aside ex debito justitiae, and that in cases of nullity procedure is unimportant, since the Court has inherent jurisdiction to set aside its own order. I accept these principles, as laid down by Lord Greene, MR.” (Emphasis added).

21. It is the respondent’s submissions that the appellants have not informed the Court the followinga.Whom they served the orders on behalf of the 1st and 2nd respondent, the 2nd being a company.b.Why they never served the notice as provided Under Section 30 of the Contempt of Court Act.c.The failure to properly mention or identify the names of contemnors clearly shows no service was ever done.

22. On the fifth issue, it is the respondent’s submissions that the burden of proof is squarely on the appellants to prove the order was served personally upon the respondents and was accompanied by the penal notice and lastly the same was breached or disobeyed and from the foregoing the appellants have totally failed to proof the same and the application for contempt only ought to be dismissed with costs to the respondents.

23. I have also considered the rival written submissions. The issues for determination put forward by both parties revolve around the following issues:a.Whether there was knowledge of a court order and if so was it disobeyedb.Whether there was proper service

24. On the first issue, the appellants contend that the respondents were indeed represented by the firm of Morara Onsongo & Co. Advocates and that they were present when the orders were being extended.

25. On the other hand, the respondents submitted that there were no court orders to be disobeyed because the order was given on 8th October, 2018 for 14 days only and that the extension of Interim orders was a nullity.

26. The respondents further submitted that the court must be satisfied that indeed one has willfully and deliberately disobeyed a court order that he is aware of.

27. Contempt of Court is in the nature of criminal proceedings and, therefore, proof of a case against a contemnor is higher than that of balance of probability. This is because liberty of the subject is usually at stake and the applicant must prove willful and deliberate disobedience of the court order, if he were to succeed. This was aptly stated in Gatharia K. Mutikika v Baharini Farm Limited [1985] KLR 227, that:A contempt of court is an offence of a criminal character. A man may be sent to prison. It must be proved satisfactorily…. It must be higher than proof on a balance of probabilities, almost but not exactly, beyond reasonable doubt. The standard of proof beyond reasonable doubt ought to be left where it belongs, to wit criminal cases. It is not safe to extend it to offences which can be said to be quasi-criminal in nature.However, the guilt has to be proved with such strictness of proof as is consistent with the gravity of the charge… Recourse ought not to be had to process of contempt of court in aid of a civil remedy where there is any other method of doing justice. The jurisdiction of committing for contempt being practically arbitrary and unlimited, should be most jealously and carefully watched and exercised with the greatest reluctance and the greatest anxiety on the party of the judge to see whether there is no other mode which is not open to the objection of arbitrariness and which can be brought to bear upon the subject… applying the test that the standard of proof should be consistent with the gravity of the alleged contempt… it is competent for the court where contempt is alleged to or has been committed, and or an application to commit, to take the lenient course of granting an injunction instead of making an order for committal or sequestration, whether the offender is a party to the proceedings or not.

28. Due to the gravity of consequences that ordinarily flow from contempt proceedings, it is proper that the order be served and the person cited for contempt should have had personal knowledge of that order.

29. The appellants submitted that the respondent’s advocate was in court when the order was made and the respondent was subsequently served with orders. The appellants pointed out the annexed as and marked as BO-1 to the supporting affidavit of Benson Omondi and therefore the respondents had full knowledge.

30. In this regard, the Supreme Court of India held in Indian Airports Employees Union v Ranjan Catterjee & Another [AIR 1999 SC 880: 1999(2) SCC:537, that in order to amount to “civil contempt” disobedience must be willful. If disobedience is based on the interpretation of court’s order, notification and other relevant documents, it does not amount to willful disobedience.

31. The appellants submitted that respondent was aware of the order because his advocate was in court. There is no evidence that the respondent was aware of the terms of the order. Knowledge is a question of fact and one must be aware of the terms of the order. That is, he must know what the order required him to do or not to do but willfully and deliberately disobeyed it.

32. The emphasis as shown in the above cases is that there must be “willful and deliberate disobedience of court orders.” There cannot be deliberate and willful disobedience, unless the contemnor had knowledge of the existence of that order. And because contempt is of a criminal nature, it is always important that breach of the order be proved to the required standard; first, that the contemnor was aware of the order having been served or having personal knowledge of it, and second; that he deliberately and willfully disobeyed it.

33. In Peter K Yego & others v Pauline Wekesa Kode, (Acc No. 194 of 2014, the court stated that “it must be proved that one had actually disobeyed the court order before being cited to contempt.”

34. The appellants stated that there were photos annexed to the supporting affidavit of BENSON Omondi support the Contempt as the respondent’s agents, employees of servants can be seen working/constructing on PLOT No.SPA 16 KAYOLE SOWETO and the walls of the building under construction.

35. It is also clear that since the court orders were issued the respondents have trespassed and continued to trespass and also other way interfere with the suit property by continuing to construct which is a blatant disrespect to this court’s orders of which they had knowledge of existence.

36. The said orders read as follows:“That a Temporary Injunction b and is hereby issued the 1st and 2nd respondent by themselves, their agents, servants or employees from entering upon, trespassing ,taking possession and or in any other way interfering with the applicant’s plot No.16 KAYOLE SOWETO pending the hearing and determination of this suit.”

37. The Cromwell J, writing for the Supreme of Canada in Carey v Laiken, 2015 SCC 17 (16th April 2015), expounded on the three elements of civil contempt of court which must be established to the satisfaction of the court, thus:i)The order alleged to have been breached “must state clearly and unequivocally what should and should not be done.” This ensures that a party will not be found in contempt where an order is unclear. An order may be found to be unclear if, for example, it is missing an essential detail about where, when or to whom it applies; if it incorporates overly broad language; or if external circumstances have obscured its meaning.ii)The party alleged to have breached the order must have had actual knowledge of it. It may be possible to infer knowledge in the circumstances, or an alleged contemnor may attract liability on the basis of the willful blindness doctrine.iii)The party alleged to be in breach must have intentionally done the act that the order prohibits or intentionally failed to do the act that the order compels. (emphasis)

38. In the present case, it has been sufficiently demonstrated that the respondents deliberately disobeyed court orders. Contempt proceedings are a serious undertaking because a court exercising this jurisdiction is minded to ensure the orderly functioning of society and the rule of law. On conviction, the alleged contemnor stands to lose his or her liberty. It should not, therefore, be taken lightly.

39. For the above reasons and to the circumstances abiding to this appeal, it stands allowed to the extent that the following orders do issue as against the respondenti.The ruling dated 25th July 2019 is set aside and substituted with an order allowing the application dated 25. 1.2019. ii.Consequently, I find the respondents in contempt of the orders of this court for which he should be punished.iii.Accordingly, I order that Mr. Alex Muathe Matu appear in person before this court on 15/12/2022 to show cause why he should not be committed to civil jail. In default of appearance, a warrant of arrest is to issue.iv.Each party shall bear its costs.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 9TH DAY OF DECEMBER, 2022. ………………………J. K. SERGONJUDGEIn the presence of:……………………………for the 1st Appellant……………………………for the 2nd Appellant……………………………for the 1st Respondent……………………………for the 2nd Respondent